Leaving hospital should mean you are well enough to continue your recovery safely at home or in another setting. If you were discharged from hospital too early and your condition then deteriorated, you may be left wondering whether a different decision would have prevented the harm. Our medical negligence team can review what happened and explain whether you may have a claim.
Not every readmission means a discharge decision was wrong. Some conditions change unpredictably, and returning to hospital can be a normal part of recovery. A claim depends on whether the decision to discharge, or the way discharge was planned, fell below a reasonable standard, and whether that caused avoidable harm. Where the discharge followed a missed or delayed diagnosis, our page on misdiagnosis and delayed diagnosis claims may also help.
What does premature discharge look like?
Premature or unsafe discharge can happen in A&E, after an operation, on a medical ward or after childbirth. Concerns that may need investigating include:
- being sent home while observations such as temperature, heart rate, blood pressure or oxygen levels were still abnormal;
- blood tests, scans or other results not being checked or acted on before discharge;
- symptoms of a serious condition, such as sepsis, a blood clot, a heart problem or a post-operative complication, not being properly assessed;
- an elderly or vulnerable person being discharged without the care, equipment or support they needed;
- no clear advice about warning signs, medication or when to seek urgent help.
Discharge can also be unsafe even when the timing was reasonable, for example where medication was wrongly prescribed on discharge, important information was not passed to the GP, or a planned follow-up was never arranged.
The standard of care
The legal test is whether the discharge decision was one that a responsible body of medical opinion would have supported, and whether that opinion stands up to logical analysis [1]. Clinicians are not expected to predict every complication. The question is whether, on the information available at the time or which should reasonably have been obtained, it was reasonable to discharge the patient in the way that happened.
Independent medical experts will usually review the observation charts, test results, nursing notes, clinical entries and discharge summary. They will consider what assessments should have been carried out before discharge, whether any warning signs were missed, and whether a reasonably competent clinician would have kept the patient in hospital or arranged further tests.
Discharge planning guidance
For adults with social care needs, NICE guidance recommends that a single health or social care practitioner coordinates discharge, that discharge planning starts from admission, and that pressure to free up beds must not result in unplanned and uncoordinated discharges [2]. The hospital doctor responsible for the patient should also make sure the discharge summary is made available to the GP [2].
The Department of Health and Social Care and NHS England publish hospital discharge and community support guidance on how NHS bodies and local authorities should work together to support safe and timely discharge [3]. Where a patient is likely to need care and support after leaving hospital, the NHS and local authorities also have legal duties to work together on discharge [4].
Guidance is not the same as the law, and departing from it does not automatically prove negligence. It can, however, help experts and the court understand what a reasonable discharge process looks like.
Causation: did the early discharge cause harm?
It is not enough to show that discharge was premature. It must be shown, on the balance of probabilities (more likely than not), that staying in hospital longer, or a better-planned discharge, would have avoided or reduced the harm.
For example, if a patient with developing sepsis was sent home and became seriously unwell before being readmitted, the evidence would need to show that treatment would probably have been given earlier, and that earlier treatment would probably have led to a better outcome. A reduced chance of a better outcome is not usually enough on its own [5]. If the same harm would probably have happened anyway, compensation may not be available even where the discharge was poorly handled.
How a claim works
A solicitor will usually start by taking your account and obtaining the records from your first admission, any readmission, your GP and the ambulance service. A clear timeline is often important in these cases: when you were discharged, what your observations showed, what you were told, when symptoms worsened and when you returned to hospital.
If the expert evidence supports a claim, a Letter of Claim is sent under the Pre-Action Protocol for the Resolution of Clinical Disputes, and the hospital normally has four months to respond [6]. Claims against NHS trusts in England are usually handled by NHS Resolution under the Clinical Negligence Scheme for Trusts, although the trust remains the defendant [7]. A claim against a private hospital follows the same protocol but is dealt with by the provider or its insurers.
Compensation is assessed on the medical evidence and can cover pain, suffering and loss of amenity, together with financial losses such as lost earnings, care, travel and treatment costs. The Judicial College Guidelines are commonly used as one reference point [8].
Time limits
In most clinical negligence claims, court proceedings must be started within three years of the negligence, or of the date you first knew that a significant injury may have been caused by it [9]. For children, the three-year period normally begins at 18, and different rules apply where a person lacks the mental capacity to conduct proceedings [10]. Where someone has died after an unsafe discharge, separate time limits apply to claims by the estate and dependants [11]. Read more about medical negligence time limits.
Making a complaint
You can complain to the hospital’s complaints team, or contact its Patient Advice and Liaison Service (PALS) for help. NHS complaints should normally be made within 12 months of the event, or of when you became aware of it [12] [13]. A complaint can give you an explanation and may lead to an investigation, but it is separate from a legal claim and does not stop the limitation clock. An apology is not in itself an admission of negligence [14].
Frequently asked questions
I was readmitted within days of discharge. Does that prove negligence?
No. Readmission can happen even after a reasonable discharge decision. A claim depends on expert evidence that the discharge fell below a reasonable standard and that this probably caused avoidable harm.
Can I claim if I asked to go home?
Possibly. Clinicians should still assess whether discharge is safe and explain the risks clearly. If you chose to leave against medical advice after being properly informed, a claim is less likely, but the details matter.
My elderly parent was sent home without any care in place. Can we claim?
If the lack of support caused harm, such as a fall, dehydration or a missed medication, a claim may be possible. Discharge planning records, care assessments and the discharge summary will be important.
What if I was discharged from A&E rather than a ward?
The same legal principles apply. The question is whether the assessment in A&E was reasonable and whether sending you home caused avoidable harm.
Can I claim for a relative who died after an early discharge?
Potentially. The estate and certain dependants may be able to bring a claim [11]. Prompt advice is sensible because the time limits can be different after a death.
If you believe you, or someone close to you, was sent home from hospital before it was safe, a careful review of the records can help establish what happened and what options are available.
For a free, confidential assessment call 0333 777 5001.
No win, no fee. Terms apply.
Sources
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582; Bolitho v City and Hackney Health Authority [1997] UKHL 46: https://www.bailii.org/uk/cases/UKHL/1997/46.html
- NICE guideline NG27, Transition between inpatient hospital settings and community or care home settings for adults with social care needs (recommendations 1.5.1, 1.5.6, 1.5.12 and 1.5.13): https://www.nice.org.uk/guidance/ng27
- Department of Health and Social Care and NHS England, Hospital discharge and community support guidance: https://www.gov.uk/government/publications/hospital-discharge-and-community-support-guidance
- Care Act 2014, section 74 (discharge of hospital patients with care and support needs): https://www.legislation.gov.uk/ukpga/2014/23/section/74
- Gregg v Scott [2005] UKHL 2: https://www.bailii.org/uk/cases/UKHL/2005/2.html
- Pre-Action Protocol for the Resolution of Clinical Disputes: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_rcd
- NHS Resolution, Clinical Negligence Scheme for Trusts: https://resolution.nhs.uk/services/claims-management/clinical-schemes/clinical-negligence-scheme-for-trusts/
- Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (current edition, Oxford University Press).
- Limitation Act 1980, sections 11 and 14: https://www.legislation.gov.uk/ukpga/1980/58/section/11 and https://www.legislation.gov.uk/ukpga/1980/58/section/14
- Limitation Act 1980, section 28: https://www.legislation.gov.uk/ukpga/1980/58/section/28
- Limitation Act 1980, section 12; Fatal Accidents Act 1976, section 1; Law Reform (Miscellaneous Provisions) Act 1934, section 1: https://www.legislation.gov.uk/ukpga/1980/58/section/12, https://www.legislation.gov.uk/ukpga/1976/30/section/1 and https://www.legislation.gov.uk/ukpga/Geo5/24-25/41/section/1
- Local Authority Social Services and National Health Service Complaints (England) Regulations 2009, regulation 12: https://www.legislation.gov.uk/uksi/2009/309/regulation/12
- NHS England, Making a complaint: https://www.england.nhs.uk/contact-us/feedback-and-complaints/complaint/
- Compensation Act 2006, section 2: https://www.legislation.gov.uk/ukpga/2006/29/section/2
